The opinion of the court was delivered by: NEAHER
On December 11, 1979, Peter Rea pleaded guilty before this Court to a charge of conspiracy to deal in firearms without a license. On February 20, 1980, the Court suspended the imposition of sentence and placed Rea on probation for a term of three years. At that time Rea promised to abide by the conditions of probation, reproduced as Appendix A, with the understanding that a violation of any of them during the probationary period could result in the revocation of probation and incarceration.
On May 29, 1981, Rea was arrested by his United States Probation Officer, Christopher Swords. On June 4, 1981, the Court held a hearing on the government's application to revoke Rea's probation based on alleged violations of two conditions of his probation.
Rea's counsel contends that for the purposes of determining whether a violation has occurred, the Court may not consider certain evidence presented by the government because it had been obtained in violation of Rea's constitutional rights. For the reasons which follow, the Court rejects Rea's contention and finds that he has violated the conditions of his probation.
At the revocation hearing, Swords testified that on May 26, 1981, an anonymous caller telephoned and stated that he had information about Rea.
Specifically, the caller alleged that Rea was in possession of cocaine; that he was in possession of forged baptismal certificates; that he had left the Eastern District of New York and had travelled to Washington, D.C., without the permission of his probation officer; that he was involved in a conspiracy to defraud by making false claims with regard to American Express Travelers checks; and that he had been in an automobile accident the previous week.
Swords independently verified through the New York City Police Department that Rea had in fact been involved in such an accident and had also been questioned by an officer of the 106th precinct. Swords further ascertained from an investigator with the American Express Travel Service that such a conspiracy involving Rea was suspected and an investigation by the company was being initiated. Swords testified that neither he nor anyone else in the Probation Department had been informed that Rea had taken a trip outside of the Eastern District, nor that he had been in an auto accident and had been questioned by a policeman.
On May 29, 1981, Swords and three other probation officers went to Rea's residence in Queens, New York. Swords and one other officer rang the doorbell and were met by Camille DeLucia, Rea's common law wife. While still in the hallway, Swords identified himself and DeLucia allowed the two officers into the apartment. Rea joined them and after a few moments conversation, Swords asked him about his automobile, which had previously been impounded. Rea stated nothing was new and then said, in an "offhand" manner, that he had been "in a minor accident the other night." Swords then confronted him with the information he had received and reminded Rea of his obligation, as a condition of probation, to report immediately any time he was questioned by any law enforcement officer. Swords stated that he had reasonable cause to believe that Rea was in violation of probation for failure to report the incident.
Swords then asked Rea and DeLucia if they had any objection to the officers looking around the apartment. When both promptly responded that they had no objection, Swords sent for the other two probation officers, who had been waiting outside in a car. When Swords introduced the two officers to Rea and DeLucia, the latter suddenly stated that they did not want the officers to search the apartment. When DeLucia appeared to become upset, Swords suggested to Rea that he convince her to leave the apartment, as the officers did not want to further upset her and they did not believe the search would involve her.
After DeLucia departed, but before any search occurred, Swords told Rea the substance of the information he had received from the anonymous caller and asked about the forged baptismal certificates. Rea admitted that he had some, went to get them and handed them over to one of the officers. Thereafter, as Swords and Rea sat at the dining room table, the three officers searched the apartment. The apartment was not disrupted and the officers completed the search before 3:00 p.m., the time Rea had informed them children would return to the apartment.
While the search was being conducted, Swords asked Rea whether or not he had left the Eastern District. When Rea responded that he wished to speak with an attorney before he made any statement regarding a trip, Swords changed the topic and asked about the baptismal certificates. Rea answered that they had been given to him by a friend but that he could not identify the friend. Swords then asked about the allegations of fraud with regard to the American Express travelers checks. Rea admitted that he had participated in such a scheme and provided information as to another participant. In the course of this discussion, Rea stated that earlier that month he had traveled with DeLucia and two others to Washington, D.C., for the purpose of cashing travelers checks.
The search of Rea's apartment uncovered a loaded .25 caliber pistol, rounds of ammunition and accessories for that and other handguns, tear gas pellets, an illegal stiletto knife, four ounces of marijuana, assorted drug paraphernalia and cutting solutions, and several blank baptismal certificates. Pursuant to department policy, Swords telephoned his supervisor and received authorization to arrest Rea on the basis of his statements and the items recovered in the apartment.
It is Rea's contention that the probation officers could not search his apartment without previously obtaining a valid search warrant. In the absence of such a warrant, and since he had withdrawn his earlier consent to search, Rea argues that the evidence must be suppressed for purposes of this probation revocation proceeding.
The question whether a warrant is required to search the home of a probationer implicates special considerations arising out of the peculiar status of those who, by the grace of the sentencing judge, have been permitted to serve their sentences outside of jail. Only two Circuits appear to have addressed the question directly and they have arrived at opposite conclusions. Compare Latta v. Fitzharris, 521 F.2d 246 (9th Cir.) (en banc ), cert. denied, 423 U.S. 897, 96 S. Ct. 200, 46 L. Ed. 2d 130 (1975) (probationer's home may be searched without a warrant on an officer's informed "hunch"), with United States v. Bradley, 571 F.2d 787 (4th Cir. 1978) (conviction for firearms possession reversed where parole officers had seized gun in warrantless search of parolee's room).
Probationers, whose status for these purposes is "constitutionally indistinguishable" from that of parolees, Gagnon v. Scarpelli, 411 U.S. 778, 782 n.3, 93 S. Ct. 1756, 1759 n.3, 36 L. Ed. 2d 656 (1973),
"are neither totally stripped of nor fully invested with constitutional protections. They are different from other citizens and they may, in certain circumstances, possess fewer constitutional rights. This difference in status and protection is based on the fact that (probationers) have been convicted of a crime and are ...